UnFAIR but Not Illegal

December 6, 2005

THE SUPREME Court today hears oral arguments in the case of Rumsfeld v. FAIR, a constitutional challenge to a law designed to force universities to permit military recruiting on their campuses. The law is bad policy that effectively makes universities complicit in an even worse policy -- that is, the military's discriminatory "don't ask, don't tell" rule on gay men and lesbians serving their country. But not every bad law offends the Constitution, and this litigation is something of a misfire.

The law in question denies federal funding to universities that refuse to treat military recruiters as favorably as those from other potential employers. Because of "don't ask, don't tell" -- which calls for anyone who admits to being gay to be discharged from the armed forces -- many law schools have refused to assist military recruiters, citing university anti-discrimination policies. After the Sept. 11, 2001, attacks, the military notified schools that it would be enforcing the law more aggressively. In response, a coalition calling itself the Forum for Academic and Institutional Rights (FAIR) went to court, arguing that the law violated the First Amendment; a lower court agreed.

As a legal matter, the claim seems wrong. Universities get torrents of money from the federal government: According to court documents in the case, Harvard and Yale each receive more than $300 million a year. The First Amendment is not an entitlement program that requires that such money come with no strings attached. The law (known as the Solomon Amendment, after the late New York Republican representative Gerald B.H. Solomon) does not require that universities promote the policy: They remain free to denounce it. The law simply demands that they not frustrate military recruitment while opening their bank accounts to large grants.

As a moral matter, however, the government is defending the indefensible -- a fact that the litigation, which necessarily focuses on the legalities, may tend to obscure. The major problem with "don't ask, don't tell" is not its effect on the First Amendment rights of law schools. Rather, it's that the military continues to expel patriotic Americans who want to serve their country at a time when it needs all hands to fight two wars. The denigration of these soldiers, sailors, airmen and Marines robs the military of much-needed talent while forcing gays who remain in the military to deny who they are -- though there is no evidence that they pose any problem for military performance. The repeal of "don't ask, don't tell" may not be hastened by litigation focusing on its ancillary impact on law schools, but repeal remains the right solution.